I have just come out of the court room at the National Environmental Tribunal and wanted to share this exciting news with you.
Today the National Environment Tribunal made its ruling on the Southern Bypass case. This case has been dragging on for a year now.
The short story is that WE WON! What this means is that the EIA license issued by NEMA to the Kenya Highways Authority has been revoked for the section of the road that is between Ole Sereni Hotel and Carnivore. To get a new license they must comply FULLY with the laws of Kenya.
Today we dealt a blow to the impunity that is destroying our wilderness areas.
This is what happened in more detail.
Last February EAWLS, ANAW and I took NEMA and the Kenya National Highways Authority (KeNHA) to court over the intention to construct a 5 km section of the Southern Bypass through Nairobi Park which is in breach of the NEMA license for the highway which had certain conditions. Our main concerned was that if they built the road according to their plans which included 5 km inside Nairobi National Park, they would violate condition 2.2. That the road must not encroach on gazetted National Parks (Nairobi National Park).
KENHA agreed to the conditions but our meetings with them and their own maps and plans revealed that they had no intention of adhering to the condition.
We challenged NEMA because they issued a conditional license but was doing nothing to ensure that the condition was being adhered to.
In their response both NEMA and KENHA tried to have case thrown out and accused us of trying to frustrate the government’s work of building infrastructure. In their argument NEMA stated that “The appellants’ appeal is an insincere, mischievous and influenced by ill motive” “It is complete misadventure and misrepresentation of facts” and “It is in the interest of the public that the appeal fails”
The four judge panel was unmoved by such accusations and ruled UNANIMOUSLY that the condition had been violated because they “intended to breach the condition 2.2”
In its ruling the NET judges ruled that:
“NEMA ought not to have licensed construction of the whole by-pass if it deemed it likely to affect the park and the biodiversity there in irreparably”. It ought to have sought alternative road designs
Stated that the EIA expert for KENHA, Professor Kibwage who “not only conducted the EIA but also had advisory responsibilities regarding a national by-pass knowingly misleading NEMA the responsible agency, amounts to unbecoming and unacceptable conduct.”
The Tribunal also faulted KENHA “The Tribunal also notes that KenHA accepted NEMA’s EIA License condition 2.2 knowing that it would be impossible for it to comply with it
“The Tribunal found that” the appellants (Paula Kahumbu, ANAW and EAWLS) were concerned about their environment here constituted by wild flora and fauna and their habitat were permitted by law to seek redress in the Tribunal against NEMA’s approval of the project”.
In its Orders, the Tribunal stated that it unanimously allows the appeal, in part, and hereby
1 a) varies the terms of the EIA License number 0008121 issued by NEMA to KENHA on 18th February 2011
The segment of the proposed by-pass between Ole Sereni Hotel and Carnivore Restaurant is excluded from the License and read construction thereon stopped unless KENHA fully complies with all legal requirements for acquisition of part of the Nairobi National Park
b) stops construction of the by-pass in the contentious area until Nema fully complies with both substantive and procedural provisions of law in supervising any future EIA processes for the area under contention in this appeal including requirements for the project proponents submission to it of requirements for the project proponents submission to it of alternative site, alternative road design and technology for the contentions segment of the by-pass as required by Regulation s of the EIA and Audit Regulations and parliamentary approval for de-gazzettement of the part of the park. If it’s excision is deemed necessary before approving and licensing construction of a section of the by-pass in that area.
So many of you were part of this campaign and supported us in cash, kind and with encouragement.
To me this ruling is a very loud announcement that it is not only our right but our duty to protect our environment using the laws that we have enacted in Kenya. It is a victory not only for the animals and the park, but also for every Kenyan who feels helpless about the deterioration of our environment. This victory is proof that things are changing in Kenya and there is reason to hope, dream and take action.
Thank you all for believing in us. Please do not be shy about spreading this news.